David Limbaugh

In my daily perusal of the news, I caught two items that illustrate, quite clearly, how liberals view the role of the judiciary, thus revealing, in stark terms, how critically important is the battle over the judicial filibuster.

First, I read about a commencement speech at Brandeis University by the Massachusetts Supreme Judicial Court justice who authored the opinion declaring same-sex marriage legal in Massachusetts. Newsmax.com reported that Justice Margaret Marshall said, "Our courts function as a pressure valve to defuse political and social tension." Marshall equated criticism of "judicial activism" to a challenge to judicial independence and an effort "to skew public debate or to intimidate judges."

Where do you suppose Marshall came up with the idea that courts serve as pressure valves? Of course we resolve legal disputes in trial courts, but that's hardly what the justice meant by defusing social and political tension. Where in the Constitution -- federal or State of Massachusetts -- did this lady divine the notion that appellate courts are to take it upon themselves to set policy?

But here she is, consistent with her same-sex marriage decision, publicly defending the prerogative of the judiciary to make law and implement a policy agenda. Worse, she's employing the tactic recently adopted by the Left of accusing opponents of judicial activism of intimidation when they denounce judges who engage in the practice. It's another perfect example of accusing the other side of doing precisely what you are attempting: intimidation.

When its guard is down, the Left openly admits it philosophically supports judicial activism as a means to the end of establishing policy. Having resigned itself to the unlikelihood of achieving its goals through the legislative process, the Left doesn't even bother to explain how it can reconcile the courts assuming a law-making role.

That's why there is no moral equivalence between conservatives opposing activist judges and liberals opposing originalist judges. Even if Republicans had obstructed President Clinton's appellate court appointments to the degree Democrats have blocked President Bush's, which is not the case, we're talking apples and oranges, because most such Clinton appointees believe, as a matter of their judicial philosophy, that it's acceptable for courts to make law. If all judges honored the courts' proper constitutional role, the subject of their "conservatism" or "liberalism" would be largely irrelevant, because they would relegate themselves to interpreting the law, rather than making policy -- conservative or liberal.


David Limbaugh

David Limbaugh, brother of radio talk-show host Rush Limbaugh, is an expert in law and politics and author of new book Crimes Against Liberty, the definitive chronicle of Barack Obama's devastating term in office so far.

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